November 7, 2013

American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273)

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-lucas-2013-ny-slip-op-07273/

Court
Appellate Division, First Department
Decided
November 7, 2013
Citation
2013 NY Slip Op 07273 · 111 AD3d 423
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Distinguished in 1 and followed in 33 later decisions (see Cited by)
Issues
IME no-show Timeliness and preclusion
Legal questions
No-show: coverage defense or precludable? · Proof of mailing · No-show defense: insurer's proof (see the maps)
Cite as
American Tr. Ins. Co. v Lucas, 111 AD3d 423 (1st Dept 2013)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

Failure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness. In two actions, the insurer established mailing of IME notices and the assignors' nonappearance through sworn affidavits of the examining physician and an employee. The affidavits were not conclusory: they established personal knowledge, the employee's role, and the physician's knowledge of nonappearance procedures. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the coverage defense did not require timely denials under 11 NYCRR 65-3.8 (c). The Appellate Division, First Department, reversed the orders, insofar as appealed from, granted the insurer's summary judgment motions, and declared no coverage obligation to the provider for either claimant.

Reported in New York Official Reports at American Tr. Ins. Co. v Lucas (2013 NY Slip Op 07273)

American Tr. Ins. Co. v Lucas
2013 NY Slip Op 07273 [111 AD3d 423]
November 7, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 25, 2013
American Transit Insurance Company, Appellant,
v
Keyana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent. American Transit Insurance Company, Appellant, v Tashuana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Unitrin, 82 AD3d at 560). [*2]

” ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], 2005 NY Slip Op 51815[U] [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A], 2007 NY Slip Op 50365[U] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560). Concur—Mazzarelli, J.P., Acosta, Saxe, Richter and Feinman, JJ.

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